FILED JUNE 12,2014 In the Office of the Clerk of Court WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
In re the Petition for Relief from Personal ) Restraint of: ) No. 30150-8-III ) (consolidated with JUAN PEDRO RAMOS, ) No. 30766-2-III) ) Petitioner. ) ----------------------------)
) STATE OF WASHINGTON, ) ORDER DENYING MOTION FOR ) RECONSIDERATION AND Respondent, ) GRANTING MOTION TO PUBLISH ) v. ) ) JUAN PEDRO RAMOS, ) ) Appellant. )
The Court has considered appellant's motion for reconsideration and the appellant's
motion to publish the opinion of May 8, 2014, and the record and file herein, and is of the
opinion the motion for reconsideration should be denied and the motion to publish should be
granted. Therefore,
IT IS ORDERED the motion for reconsideration of this court's decision of May 8, 2014,
is denied.
IT IS FURTHER ORDERED the motion to publish is granted. The opinion filed by the
court on May 8, 2014 shall be modified on page 1 to designate it is a published opinion and on
page 15 by deletion of the following language: No. 30150-8-111 conso!. w/30766-2-111 In re Pers. Restraint ofJuan Pedro Ramos; State v. Ramos
A majority of the panel has detennined that this opinion will not be printed in the Washington Appellate Reports but will be filed for public record pursuant to RCW 2.06.040.
DATED: June 12,2014
PANEL: Judges Brown, Siddoway, Fearing
FOR THE COURT:
~!Jf!o)~ CHIEF JUDGE FILED
MAY 8,2014
In the Office ofthe Clerk of Court
W A State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
In re the Petition for Relief from Personal ) Restraint of: ) No. 30150-8-III ) (consolidated with JUAN PEDRO RAMOS, ) No. 30766-2-III) ) Petitioner, ) UNPUBLISHED OPINION ) ) STATE OF WASHINGTON ) ) Respondent, ) v. ) ) JUAN PEDRO RAMOS, ) ) Appellant. )
FEARING, J. - We once again address the ramifications of Padilla v. Kentucky,
559 U.S. 356 130 S. Ct. 1473, 1761. Ed. 2d 284 (2010). In 1997, noncitizen Juan Pedro
Ramos pled guilty to the crime of first degree theft. Through an appeal and a personal
restraint petition, Ramos seeks to vacate the guilty plea, claiming his criminal defense
attorney failed to inform him that the crime was a deportable offense. We rule that
Ramos did not suffer from ineffective assistance of counsel, since the immigration No. 30150-8-III consol. w/30766-2-II1 In re Pers. Restraint ofJuan Pedro Ramos; State v. Ramos
consequences of his plea were not clear and he was warned of possible deportation. We
deny the plea vacation.
FACTS
Juan Pedro Ramos is not a United States citizen, although his parents, on his
behalf, applied for a green card in 1992. On December 26, 1996, the State of Washington
charged Ramos with first degree theft. The State alleged Ramos and two others planned
to steal 23 cars, valued at over $690,000, from a dealership. The court appointed attorney
Rem Ryals to represent him.
On January 21, 1997, Juan Pedro Ramos pled guilty to first degree theft. In the
signed statement of defendant on plea of guilty, Ramos acknowledged that his guilty plea
could affect his immigration status. Paragraph 6(h) of the guilty plea statement provided:
IfI am not a citizen of the United States, a plea of guilty to an offense punishable as a crime under state law is grounds for deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States.
Paragraph 12 of the guilty plea statement provided:
My lawyer has explained to me, and we have fully discussed, all of the above paragraphs. I understand them all. I have been given a copy of this "Statement of Defendant on Plea of Guilty." I have no further questions to ask the judge.
Clerk's Papers (CP) at 52, 54.
At a plea hearing, the court informed Juan Pedro Ramos that he was giving up
No. 30I50-8-III conso!. w/30766-2-III In re Pers. Restraint ofJuan Pedro Ramos; State v. Ramos
various constitutional rights and explained, "If you're not a citizen of the United States,
you'll face deportation upon the entry of a finding of guilty." Report of Proceedings (RP)
at 3 (Jan. 21, 1997). Ramos indicated he understood.
Juan Pedro Ramos was 18 years old when arrested for the theft. He now testifies
that he got "off to a bad start" when younger. CP at 13. Alas, he "was young and
arrogant and wasn't making very good choices about what to do with [his] life." CP at
13.
A week after he pled guilty in 1997, a Franklin County Superior Court sentenced
Juan Pedro Ramos to 45 days in jail, and fined him $1,029.35. After he was convicted,
Juan Pedro Ramos' mother stopped the green card application process out of fear that her
son would be deported.
In January 2011, Juan Pedro Ramos contacted a lawyer to inquire about his
immigration status. Ramos claims he then discovered that his conviction required he be
deported. To date, United States Custom and Border Protection has not sought to deport
Ramos.
Juan Pedro Ramos now asserts that his attorney, Rem Ryals, never inquired about
his immigration status. Ramos further claims he was not infonned, at the time of his
plea, about certain deportation as a result of entering the guilty plea. In an affidavit,
Ramos testifies his lawyer never told him that ifhe pled guilty to the charges that he
No. 30150-8-III consol. w/30766-2-III In re Pers. Restraint ofJuan Pedro Ramos; State v. Ramos
would have no chance to remain in the United States. Ifhe had been told of the
immigration consequences, he would not have pled guilty but would have found a lawyer
who would explain to him how he might avoid deportation by possibly pleading guilty to
another crime. In a second affidavit, Ramos testifies that, during the court hearing when
he pled guilty, he learned of a chance he would be deported. He learned of the possibility
when reviewing papers with his counsel Rem Ryals before he appeared before the judge.
In April, Juan Ramos filed, in superior court, a motion to vacate his guilty plea.
Noted veteran criminal defense attorney, James Egan, signed an affidavit swearing that
attorney Ryals' practice was simply to read the immigration warnings to his clients. Rem
Ryals, an experienced criminal defense attorney, is deceased.
Ramos supported his assertion that his conviction subjects him to mandatory
deportation with an affidavit from prominent veteran immigration attorney, Thomas
Roach. Roach claims Ramos is subject to mandatory deportation under 8 U.S.C. §
1101(a)(43)(M)(i), which requires immediate deportation for an "aggravated felony"
which includes "[any crime involving] fraud or deceit in which the loss to the victim
exceeds $10,000." Attorney Roach does not explain how he concludes Ramos' conduct
was fraudulent or deceitful, nor does he cite any case in support of this legal opinion.
The superior court found the motion to vacate the plea time barred and transferred
it to this court for consideration as a personal restraint petition (PRP) under
No. 30150-8-III consol. w/30766-2-III In re Pers. Restraint ofJuan Pedro Ramos; State v. Ramos
CrR 7.8(c)(2). While the PRP was pending, Juan Pedro Ramos filed a notice of appeal
from the 1997 judgment and sentence, with an accompanying motion and affidavit for
late filing of direct appeal under RAP 18.8(b). The Court of Appeals commissioner
found Ramos' appeal timely because the sentencing court did not inform him of his
appeal rights at the time of his plea. We consolidated Ramos' direct appeal with his
personal restraint petition.
LAW AND ANALYSIS
Personal Restraint Petition-Appeal
A personal restraint petition and an appeal from the 1997 prosecution have both
advantages and disadvantages to Juan Ramos. In an appeal, Ramos may assert the
benefits afforded by Padilla since his conviction is not final, but he may not bring new
evidence to this court, such as the affidavits of counsel Egan and Roach. See Chaidez v.
United States, 568 U.S. _, 133 S. Ct. 1103, 185 L. Ed. 2d 149 (2013); State v. Sandoval,
171 Wn.2d 163, 168,249 P.3d 1015 (2011). Although Juan Pedro Ramos may not bring
to this court new evidence, such as the affidavits of counsel Egan and Roach, in his
appeal, he may supply new evidence in his personal restraint petition. Sandoval, 171
Wn.2d at 168; State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995).
Understandably, Juan Pedro Ramos wishes the best of both worlds and the
advantages of and no disadvantages from both proceedings. Equally understandably, the
No. 30150-8-III consol. w/30766-2-III In re Pers. Restraint ofJuan Pedro Ramos; State v. Ramos
State cries foul and asks that we analyze the appeal separate from the personal restraint
petition. We grant Ramos his wish.
The Washington State Supreme Court has impliedly rejected the constrained
approach the State urges this court to adopt. Sandoval, 171 Wn.2d at 169. In Sandoval,
the court explained, if a "defendant wishes to raise issues on appeal that require evidence
or facts not in the existing trial record, the appropriate means of doing so is through a
personal restraint petition, which may be filed concurrently with the direct appeal."
Sandoval, 171 Wn.2d at 169 (quoting McFarland, 127 Wn.2d at 335). Therefore, this
court may consider the affidavits Ramos filed and apply Padilla to Ramos'
circumstances.
Ineffective Assistance of Counsel
The underlying and critical issue before us is whether Juan Pedro Ramos may
vacate his 1997 guilty plea for first degree theft, because of his defense attorney's
purported failure to warn him of the immigration consequences of his plea. To establish
ineffective assistance of counsel, a defendant must satisfy a two part test (1) that his or
her counsel's assistance was objectively unreasonable and (2) that as a result of counsel's
deficient assistance, he or she suffered prejudice. Strickland v. Washington, 466 U.S.
668,690, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). To demonstrate the first prong-
deficient performance-a reviewing court "judge[s] the reasonableness of counsel's
No. 30150-8-111 consol. w/30766-2-111 In re Pers. Restraint ofJuan Pedro Ramos; State v. Ramos
challenged conduct on the facts of the particular case, viewed as of the time of counsel's
conduct." Strickland, 466 U.S. at 690. The appellate court will presume counsel was
effective. State v. Gomez Cervantes, 169 Wn. App. 428, 434,282 P.3d 98 (2012).
The Sixth Amendment right to effective assistance of counsel encompasses the
plea process. Sandoval, 171 Wn.2d at 169 (citing In re Pers. Restraint ofRiley, 122
Wn.2d 772,780,863 P.2d 554 (1993)); McMann v. Richardson, 397 U.S. 759, 771, 90 S.
Ct. 1441,25 L. Ed. 2d 763 (1970). Faulty advice of counsel may render the defendant's
guilty plea involuntary or unintelligent. Sandoval, 171 Wn.2d at 169 (citing Hill V.
Lockhart, 474 U.S. 52, 56, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985); McMann, 397 U.S. at
770-71). To establish that the plea was involuntary or unintelligent due to counsel's
inadequate advice, the defendant must show under the test in Strickland that his
attorney's performance was objectively unreasonable and that he was prejudiced by the
deficiency. Sandoval, 171 Wn.2d at 169.
Prior to Padilla, deportation was considered to be a collateral consequence under
Washington law and anything short ofan affirmative misrepresentation by counsel of the
plea's deportation consequences could not support a plea withdrawal. Sandoval, 171
Wn.2d at 170 n.l (citing In re Pers. Restraint ofYim, 139 Wn.2d 581, 587-89, 989 P.2d
512 (1999)). Padilla explicitly rejected the proposition that only affirmative misadvice
about deportation consequences of the plea, and not failure to give such advice, could
No. 30 150-8-III consol. w/30766-2-III In re Pers. Restraint ofJuan Pedro Ramos; State v. Ramos
constitute ineffective assistance of counsel. Padilla, 559 U.S. at 369-74. Padilla also
emphasized that for "at least the past 15 years, professional norms have generally
imposed an obligation on counsel to provide advice on the deportation consequences of a
client's plea." Id. at 372.
In Padilla, the Supreme Court stated that because of deportation's "close
connection" to the criminal process, advice about deportation consequences falls within
"the ambit of the Sixth Amendment right to counsel." Padilla, 559 U.S. at 366. Padilla
explained that because "[i]mmigration law can be complex," the precise advice a
constitutionally effective counselor provides, depends on the clarity of the law. Padilla,
559 U.S. at 369. If the applicable immigration law "is truly clear" that an offense is
deportable, defense counsel must correctly advise the defendant that pleading guilty to
that particular charge would lead to deportation. Padilla, 559 U.S. at 369. If "the law is
not succinct and straightforward," counsel must provide only a general warning that
"pending criminal charges may carry a risk of adverse immigration consequences."
Padilla, 559 U.S. at 369.
To assess whether Rem Ryals' advice failed to comport with the Padilla standard,
the court must determine whether the relevant immigration law was "truly clear" that the
offense was deportable. See Sandoval, 171 Wn.2d at 169-70. Padilla and Sandoval
provide some guidance for when immigration consequences are clear.
No. 30150-8-III consol. w/30766-2-III In re Pers. Restraint ofJuan Pedro Ramos; State v. Ramos
In Padilla, the defendant pled guilty to transporting a significant amount of
marijuana in his truck-a deportable offense under 8 U.S.C. § 1227(a)(2)(B)(i):
Any alien who at any time after admission has been convicted of a violation of (or a conspiracy or attempt to violate) any law or regulation of ... relating to a controlled substance ... , other than a single offense involving possession for one's own use of 30 grams or less of marijuana, is deportable.
The Padilla Court deemed this statute "succinct, clear, and explicit in defining the
removal consequence for Padilla's conviction." Padilla, 559 U.S. at 368. By simply
"reading the text of the statute," Padilla's lawyer could determine that a plea of guilty
would make Padilla eligible for removal. Padilla, 559 U.S. at 368. Instead, counsel was
ruled incompetent for misadvising Padilla that he would not have to worry about his
immigration status since he had been in the country so long. Padilla, 559 U.S. at 359,
368-69.
In Sandoval, counsel advised the defendant to accept the State's plea offer to third
degree rape because he would not be immediately deported and would have sufficient
time to retain proper immigration counsel and ameliorate any potential immigration
consequences of his plea. Sandoval, 171 Wn.2d at 167. The court concluded counsel
performed deficiently by incorrectly dismissing the risks of deportation and not
informing the defendant that third degree rape equated to an "aggravated felony" under
No. 30l50-8-III conso!. w/30766-2-III In re Pers. Restraint ofJuan Pedro Ramos; State v. Ramos
federal immigration law that certainly subjected him to deportation. Sandoval, 171
Wn.2d at 174.
Juan Pedro Ramos' guilty plea is unlike Padilla or Sandoval because the
consequences of Ramos' plea are ambiguous. Under 8 U.S.C. § l227(a)(2)(A)(iii), "Any
alien who is convicted of an aggravated felony at any time after admission is
deportable."} An alien convicted of an aggravated felony is not eligible for cancellation
of removal. 8 U.S.C. §§ 1229b(a)(3) & (b)(1)(C). 8 U.S.C. § 1 10 1(a)(43)(M)(i) defines
"aggravated felony" to include any crime "[which] involves fraud or deceit in which the
loss to the victim exceeds $10,000." CP at 19.
Juan Ramos claims his crime, first degree theft, qualifies as an "aggravated
felony." Ramos supports his assertion that his conviction subjects him to mandatory
deportation with an affidavit from immigration attorney Thomas Roach. While we
recognize Mr. Roach as a premier immigration attorney, our role is to decide on our own,
rather than to rely on counsel, whether Ramos' conviction is one for an "aggravated
felony." Questions oflaw, except foreign law, are not the subject of expert testimony.
Clarkv. Eltinge, 38 Wash. 376,80 P. 556 (1905); UTELCOM, Inc. v. Bridges, 2010-0654
} The federal and state statutes cited herein are all from the 1996 version in effect when Juan Pedro Ramos committed the theft in the first degree and entered his guilty plea. The current versions of the statutes contain no differences pertinent to the outcome.
No. 30150-8-III consol. w/30766-2-III In re Pers. Restraint ofJuan Pedro Ramos; State v. Ramos
(La. App. 1 Cir. 9112111); 77 So.3d 39,54; Sunstar, Inc. v. Alberto-Culver Co., 586 F.3d
487, 495 (7th Cir. 2009).
The Immigration and Nationality Act (INA) does not define the terms "fraud" or
"deceit." 8 U.S.C. § 110 1. But several federal circuits offer guidance. When
interpreting the meaning of 8 U.S.C. § 11 01 (a)(43)(M)(i), the court in Valansi v.
Ashcroft, 278 F.3d 203,209 (3d Cir. 2002) held the terms should be construed in the
commonly accepted legal sense. Fraud means a false representation of a material fact
made with knowledge of its falsity and with intent to deceive. Valansi, 278 F.3d at 209
10. The deceived party must believe and act on the misrepresentation to his
disadvantage. Valansi, 278 F.3d at 209-10. Likewise, the term "deceit" is commonly
perceived and has been defined as the act of intentionally giving a false impression.
Valansi, 278 F.3d 209-10; see also Patel v. Mukasey, 526 F.3d 800 (5th Cir. 2008)
("fraud" and "deceit" retained their commonly understood legal meanings).
The Second Circuit, in construing "fraud" and "deceit" under the INA, noted that
an offense under 8 U.S.c. § l101(a)(43)(M)(i) ordinarily involves the taking or
acquisition of property with consent that has been fraudulently obtained. Bazuaye v.
Mukasey, 273 F. App'x 77 (2d Cir. 2008). Bolstering its construction, the court noted
that Congress provided a separate definition for an "aggravated felony" where simple
theft is involved. That statute, former 8 U.S.C. § I 10 I (a)(43)(G) (1996), defines
II
No. 30150-8-III consol. w/30766-2-II1 In re Pers. Restraint ofJuan Pedro Ramos; State V. Ramos
"aggravated felony" to include "a theft offense ... for which the term of imprisonment
imposed ... is at least five years." This statute covers those theft offenses where a
defendant takes property without consent, as opposed to consent fraudulently obtained.
Fraud and deceit did not infect Juan Ramos' theft. Nothing in the State's probable
cause affidavit, in the charging information, or in Juan Pedro Ramos' allocution suggests
Ramos' crime "involved fraud or deceit." Ramos agreed to drive cars from a car
dealership lot with keys provided to him by a colleague who stole the master set of keys.
The affidavit holds no allegation that the keys were stolen by misrepresentation or deceit.
Ramos sought to drive the cars from the dealership lot after business hours, without any
representations.
Ramos' theft also does not qualify as an aggravated felony, under other
subsections of8 U.S.C. § 1101(a)(43). Today, under 8 U.S.C. § 1101(a)(43)(G), an
aggravated felony includes "theft" but only if defendant is imprisoned for at least one j year. Ramos received only a 45-day sentence. Whether an offense is an aggravated
felony, for purposes of immigration and deportation, is determined by the actual term of
I imprisonment imposed for that offense. United States V. Graham, 169 F.3d 787, 789-90
I I ~ (3rd Cir. 1999).
Finally, Juan Pedro Ramos contends that his offense constituted a commission of a
i ~ crime involving moral turpitude, which automatically made him ineligible to remain in
I 12
No. 30150-8-111 consol. w/30766-2-1I1 In re Pers. Restraint ofJuan Pedro Ramos; State v. Ramos
the United States. To support his contention, Ramos cites to Jordan v. De George, which
held that all offenses involving fraud are crimes of moral turpitude. Jordan v. De
George, 341 U.S. 223, 227-32, 71 S. Ct. 703, 95 L. Ed. 886 (1951). But this argument
only returns us to our conclusion that Ramos' theft did not constitute fraud or deceit.
Juan Ramos might argue that the cases defining "fraud and deceit" under the INA
were decided after he pled gUilty. But he cites no cases prior to his plea that defined his
conduct as fraudulent or deceitful. At the least, when Rem Ryals advised Ramos, the
immigration consequences of Ramos' guilty plea were unclear. If "the law is not
succinct and straightforward," counsel must provide only a general warning that "pending
criminal charges may carry a risk of adverse immigration consequences." Padilla, 559
U.S. at 369.
Juan Ramos' own testimony establishes that Rem Ryals gave him accurate advice.
Ramos learned, based upon consultation with Ryals before the guilty plea, that he could
be deported. Padilla implies that defense counsel must communicate to the client the
immigration consequences of a plea, rather than rely upon the client reading a written
form warning. But we do not consider Ryals' reading of the warning from the form to be
less of a caution than if Ryals independently uttered the warning. No case requires that
the warning of immigration consequences come directly from the thoughts ofthe attorney
rather than the attorney reading the warning to the client.
13 No. 301S0-8-IlI consol. w/30766-2-Ill In re Pers. Restraint ofJuan Pedro Ramos; State v. Ramos
Juan Pedro Ramos signed paperwork confirming the advice of Rem Ryals.
Paragraph 6(h) of the guilty plea statement provided that his plea was grounds for
deportation, exclusion from admission to the United States, or denial of naturalization
pursuant to the laws of the United States. In paragraph 12 of the guilty plea, Ramos
recognized that his guilty plea could affect his immigration status and he acknowledged
that his lawyer had explained such to him. At his plea hearing, the court informed Juan
Pedro Ramos that he was giving up various constitutional rights and explained, "If you're
not a citizen of the United States, you'll face deportation upon the entry of a finding of
guilty." RP at 3 (Jan. 21, 1997). Ramos indicated he understood.
Since Juan Ramos has not shown ineffective assistance of counsel, he fails to meet
the first prong of the Strickland test. Therefore, we need not address whether he was
prejudiced by any representation.
CONCLUSION
Under Padilla and Sandoval the advice of Juan Pedro Ramos' counsel was not
deficient. We affirm his conviction and deny his personal restraint petition.
No. 30150-8-II1 consol. w/30766-2-II1 In re Pers. Restraint ofJuan Pedro Ramos; State v. Ramos
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to
RCW 2.06.040.
Fearing, J.
WE CONCUR:
Brown, J.
IS